AMENDED AND RESTATED CERTIFICATE OF INCORPORATION
OF
THE ORIGINAL GREAT AMERICAN CHOCOLATE
CHIP COOKIE COMPANY, INC.
(Pursuant to Sections 242 and 245 of the General
Corporation Law of the State of Delaware)
THE ORIGINAL GREAT AMERICAN CHOCOLATE CHIP COOKIE COMPANY, INC., a
corporation organized and existing under the laws of the State of Delaware,
hereby certifies as follows:
1. The original Certificate of Incorporation of the corporation was
filed with the Secretary of State of the State of Delaware on June 10, 1977.
2. This Amended and Restated Certificate of Incorporation amends and
restates the provisions of the Certificate of Incorporation of this corporation,
was duly adopted in accordance with the provisions of Sections 242 and 245 of
the General Corporation Law of the State of Delaware, and was duly approved at
a meeting of the majority stockholders of the Corporation pursuant to Section
228 (d) of the General Corporation Law of the State of Delaware, with those
stockholders requiring written notice of a meeting having received and
acknowledged such notice.
3. The text of the Certificate of Incorporation is hereby amended
and restated to read in its entirety as follows:
ARTICLE I
---------
The name of the corporation is GREAT AMERICAN COOKIE COMPANY, INC.
ARTICLE II
----------
The address of the registered office of the corporation is 1013 Centre
Road, Wilmington, New Castle County, Delaware 19805. The name of its registered
agent at such address is Corporation Service Company.
ARTICLE III
-----------
The purpose of the corporation is to engage in any lawful act or
activity for which corporations may be organized under the General Corporation
Law of Delaware.
ARTICLE I-V
-----------
The total number of shares of stock which the corporation shall have
authority to issue is Two Thousand (2,000) shares, all of which shares shall be
Common Stock, no par value.
ARTICLE V
---------
In furtherance and not in limitation of the powers conferred by
statute, the Board of Directors- of the corporation is expressly authorized to
adopt, alter or repeal its By-Laws.
ARTICLE VI
----------
A director of the corporation shall not be personally liable to the
corporation or its stockholders for monetary damages for injury resulting from a
breach of his fiduciary duty as a director, except for liability (i) for injury
resulting from a breach of his duty of loyalty to the corporation and its
stockholders, (ii) for injury resulting from acts or omissions not in good faith
or which involve intentional misconduct or a knowing violation of law, (iii)
under Section 174 of the Delaware General Corporation Law, as the same exists or
hereafter may be amended, or (iv) for injury resulting from any transaction from
which the director derives an improper personal benefit. If the Delaware General
Corporation Law hereafter is amended so as to authorize the further elimination
or limitation of the liability of directors to the corporation or its
stockholders for monetary damages for breach of fiduciary duty as a director,
then the liability of a director of the corporation for monetary damages, in
addition to the limitation on personal liability provided in the preceding
sentence, shall automatically, by virtue hereof and without any further action
on the part of the corporation or its stock holders, be further limited so as to
be limited to the fullest extent permitted by the Delaware General Corporation
Law. Any repeal or modification of this Section by the stockholders of the
corporation shall be prospective only, and shall not adversely affect any
limitation on the personal liability of a director of the corporation-with
regard to actions taken or omitted before such repeal or modification.
ARTICLE VII
-----------
2
The corporation shall indemnify any person who was or is a party or is
threatened to be made a party to any threatened, pending or completed action,
suit or proceeding, whether civil, criminal, administrative or investigative, or
by or in the right of the corporation to procure a judgment in its favor, by
reason of the fact that he is or was a director, officer, employee or agent of
the corporation, or is or was serving at the request of the corporation as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise, against expenses (including attorneys'
fees), judgments, fines and amounts paid in settlement actually and reasonably
incurred by him in connection with such action, suit or proceeding if he acted
in good faith and in a manner he reasonably believed to be in or not opposed to
the best interests of the corporation, in accordance with and to the full extent
permitted by statute. Expenses incurred in defending a civil or criminal action,
suit or proceeding shall be paid by the corporation in advance of the final
disposition of such action, suit or proceeding as authorized by the Board of
Directors in the specific cast upon receipt of an undertaking by or on behalf of
the director, officer, employee or agent to repay such amount unless it shall
ultimately be determined that he is entitled to be indemnified by the
corporation as authorized in this section. The indemnification provided by this
section shall not be deemed exclusive of any other rights to which those seeking
indemnification may be entitled under this Certificate of Incorporation or any
agreement or vote of stockholders or disinterested directors or otherwise, both
as to action in his official capacity and as to action in another capacity while
holding such office, and shall continue as to a person who has ceased to be a
director, officer, employee or agent and shall inure to the benefit of the
heirs, executors and administrators of such a person.
3
IN WITNESS WHEREOF, this Amended and Restated Certificate of Incorporation
has been executed on behalf of this corporation this 10th day of December, 1993.
THE ORIGINAL GREAT AMERICAN
CHOCOLATE CHIP COOKIE COMPANY, INC.
By: /s/ Adam E. Max
---------------------------
Adam E. Max, Vice President
Attest:
/s/ Herbert B. Max
------------------
Herbert B. Max
Assistant Secretary
THE ORIGINAL GREAT AMERICAN
CHOCOLATE CHIP COMPANY COOKIE
COMPANY, INC.
By: /s/ Arthur S. Karp
------------------------
Chairman of the Board of
Directors or President
Attest: /s/ Michael J. Coles
----------------------
Secretary or Assistant
Secretary
Board of Directors of
Pennsylvania Cookies, Inc.
/s/ Arthur S. Karp
------------------
Arthur S. Karp
/s/ Michael J. Coles
--------------------
Michael J. Coles
4
Shareholder of Pennsylvania
Cookies, Inc.
The Original Great American
Chocolate Chip Cookie Company, Inc.
By: /s/ Arthur S. Karp
-----------------------------
Arthur S. Karp, President; or
Michael J. Coles, Vice
President
5